Florida State University Law Review Volume 31 Issue 1 Article 1 2003 National Security Law: More Questions Than Answers David B. Sentelle [email protected] Follow this and additional works at: https://ir.law.fsu.edu/lr Part of the Law Commons Recommended Citation David B. Sentelle, National Security Law: More Questions Than Answers, 31 Fla. St. U. L. Rev. (2003) . https://ir.law.fsu.edu/lr/vol31/iss1/1 This Essay is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Florida State University Law Review by an authorized editor of Scholarship Repository. For more information, please contact [email protected]. FLORIDA STATE UNIVERSITY LAW REVIEW NATIONAL SECURITY LAW: MORE QUESTIONS THAN ANSWERS David B. Sentelle VOLUME 31 FALL 2003 NUMBER 1 Recommended citation: David B. Sentelle, National Security Law: More Questions Than Answers, 31 FLA. ST. U. L. REV. 1 (2003). NATIONAL SECURITY LAW: MORE QUESTIONS THAN ANSWERS HON. DAVID B. SENTELLE* The terrorist attacks on the United States on September 11, 2001, the reactions to those attacks, and more recently the armed conflict in Iraq have raised, or more accurately raised anew, a host of ques- tions concerning the law of national security. Because I think the bar and especially the bench and the legal academy should be thinking about those questions, I am going to raise many of them for your thoughts and discussion, but I will not attempt to answer very many of them, both because the answers may not be fixed, and because I want to retain the openness necessary to deal with them should I confront them in an Article III context. Nonetheless, I want to offer them up for your consideration. The first question: Is national secu- rity law really law?1 Many cynical students and observers of law and politics would say no. That is, they would assert that what we call national security law is simply a fig leaf, or a collection of fig leaves to cover whatever the political branches decide to do in the name of national security or national defense, hiding the fact that national security law is really not law at all. Moreover, cynics would contend that it is just a collection of ad hoc policy decisions with essentially post hoc declarations of discretion and vague references to inherent authority, rubberstamping—either through the courts or policy an- nouncements of one sort or another—providing titular legitimization for whatever the President or the congressional majority (or some- times minority) intended to do from the very beginning. The cynical view undermines—at least in the field of national security—the American fundamental concept that ours is a government of laws and not men—a government of principles and not whim, arbitrari- ness, or caprice. I disagree. * Circuit Judge, United States Court of Appeals for the District of Columbia Circuit. Prior to his appointment to the D.C. Circuit in 1987, Judge Sentelle served on the United States District Court, Western District of North Carolina, in Ashville. He is a 1968 gradu- ate of the University of North Carolina Law School. Judge Sentelle delivered these remarks in a speech to the faculty of the Florida State University College of Law on March 28, 2003. The Judge thanks Joseph R. Coker for add- ing footnotes to his Manuscript. 1. Here I will give credit to a group of writers in the field of national security law, to whom I owe a great debt for much of the organization of my remarks today, Stephen Dycus, Arthur L. Berney, William C. Banks, and Peter Raven-Hansen, editors of a national security law textbook published by Aspen Law and Business. See NATIONAL SECURITY LAW (Stephen Dycus et al. eds., 3d ed. 2002). I also want to credit Retired Colonel Scott Silli- man, United States Air Force, who is the Director of the Center for Law, Ethics, and Na- tional Security at Duke University Law School, with whom I have had the good fortune to have frequent consultation over the last year and a half about the subject of national secu- rity. 2 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 31:1 I am not either naive enough or idealistic enough to assert that there is not some element of truth in the cynical view. Nonetheless, I think it is significant, indeed crucially important, that the bench, the bar, and perhaps especially the legal academy continue to debate the legal underpinnings of our nation’s foreign policy, its national secu- rity policy, and its national defense. Granted, there is a prevalent, indeed a respected and perhaps respectable, tradition for the proposi- tion my country right or wrong. There is, of course, a counter- tradition of more recent origin, but of disturbing prevalence, espe- cially in the academy, that my country right or wrong is wrong. The proponents, whether self-recognized or not, of each of these views, have already made up their minds, without regard to the actual le- gality of any decision or act of the foreign relations or national secu- rity, that the acts of the nation are to be defended, applauded, and upheld on the one hand, or condemned, denegrated, protested, and set aside on the other. Neither of these approaches, however, ex- plains why, after well over 200 years of national constitutional his- tory, the American bar, bench, and legal academy continue to ex- plore, expound, and debate the legitimacy of the acts taken by gov- ernment in the furtherance of foreign policy and the defense of na- tional security. That healthier tradition can only be explained and understood insofar as it is part of, and obedient to, the tradition of the rule of law—even in the confused, constantly changing, and frankly dangerous world of national security. With that said, assuming that I am correct that national security law is indeed law, What are the subsidiary questions that we should be considering within that realm? Is there a legal basis for the use of military force in foreign conflict without a declaration of war? This is a question that is currently under litigation in the First Circuit, aris- ing from a lawsuit brought by a number of members of Congress in the District Court for Massachusetts, to which the circuit has re- cently returned the litigation for further proceedings.2 It is a question likely to give rise to further litigation in other federal courts.3 At the risk of being accused of too much levity in the choice of analogy, I would say that this question is in a limited way parallel to the subject of romance: Each generation thinks it has discovered it 2. See Doe I v. Bush, No. CIV. A. 03-10284-JLT, 2003 WL 21142782 (D. Mass. Feb. 27, 2003), aff’d, 323 F.3d 133 (1st Cir. 2003). 3. Now let me say here at the outset that I do not intend to comment on that or any other pending litigation. There are ethical strictures against comment by federal judges on pending litigation, whether in our own courts or others, and although I think I am well within the exception to that stricture for comment within academic settings, I am not going to push the envelope by litigation-specific commentary. I simply wish to put forward for academic thought and review, in very sketchy fashion, the history of the controversy. In doing so, I recognize that it raises a great many subsidiary questions, at least some of which I will raise following some discussion of the general topic. 2003] NATIONAL SECURITY LAW 3 anew, but it has always been with us. We need not look back very far to see the political opposition first to President Johnson and then to President Nixon on the subject of the Vietnam War. Understand that I do not mean the word political in a negative sense, but only in a de- scriptive or generic one. Before that, a different set of political oppo- nents questioned with similar seriousness the legitimacy of President Truman’s use of force and concomitant domestic powers in the pur- suit of the Korean conflict.4 But the controversy did not first arise in the twentieth century. There have been uses of military force in in- ternational conflict without declaration of war virtually since the be- ginning of the Republic.5 To put the question into the framework of law, as opposed to political controversy, I would call your attention to the case of Bas v. Tingy.6 That decision has the unusual distinction of being one of the few decisions of the Supreme Court that still has any apparent importance issued before the appointment of Chief Justice John Marshall.7 In the late eighteenth century, relations between the new nation of the United States and the older nation of France had deteriorated far more than they have in the last few months. We had reached a state of armed conflict, albeit generally limited to conflict on the seas, but a conflict which resulted in vessels operating under French colors attacking and seizing United States-owned vessels.8 But there was no declaration of war. Indeed, the conflict is and was generally re- ferred to as the Quasi-War.9 Congress passed two acts providing for salvage rights of the former owners of the seized United States ves- sels upon their recapture.10 Captain Tingy was the commander of the public armed ship Ganges which had recaptured the Eliza, a ship be- longing to John Bas, after its capture by a French privateer.11 Tingy 4.